Kerala High Court
P.N.N.M.Ayurveda Medical College vs Kerala University Of Health Sciences on 6 November, 2017
Author: Dama Seshadri Naidu
Bench: Antony Dominic, Dama Seshadri Naidu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 21ST DAY OF DECEMBER 2017/30TH AGRAHAYANA, 1939
WA.No. 2187 of 2017 () IN WP(C).34572/2017
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AGAINST THE ORDER/JUDGMENT IN WP(C) 34572/2017 of HIGH COURT OF KERALA
DATED 06-11-2017
APPELLANT(S)/PETITIONER:
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P.N.N.M.AYURVEDA MEDICAL COLLEGE
CHERUTHURUTHY P.O, SHORNUR,
PALAKKAD DISTRICT 679 531
REPRESENTED BY THE SECRETARY, M.MURALEEDHARAN
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT(S)/RESPONDENTS:
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1. KERALA UNIVERSITY OF HEALTH SCIENCES
MULAMKUNNATHUKAVU, MEDICAL COLLEGE P.O,
TRICHUR DISTRICT 680 596
REPRESENTED BY THE REGISTRAR
2. THE COMMISSIONER OF ENTRANCE EXAMINATIONS
5TH FLOOR, HOUSING BOARD BUILDING,
SANTHI NAGAR, THIRUVANANTHAPURAM 695 001
R1 BY ADV. SRI.P.SREEKUMAR,SC
R2 BY SR GOVERNMENT PLEADER SRI TEK CHAND
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.11.2017, THE
COURT ON 21.12.2017 DELIVERED THE FOLLOWING:
ANTONY DOMINIC, Ag C.J. C.R.
&
DAMA SESHADRI NAIDU, J.
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W.A. No.2187 of 2017
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Dated this the 21st day of December 2017
J U D G M E N T
Antony Dominic, Ag C.J.
1. The appellant is the unsuccessful petitioner in W.P(C). No.34572/2017. He sought a declaration that the respondent University had to grant affiliation in tune with the permission granted by the AYUSH and that the reduction of intake by the University was illegal and unauthorised. It also, consequently, wanted the Court to direct the University to grant affiliation for the intake permitted by the AYUSH for the BAMS course for the academic year 2017-18. By the judgment under appeal, the learned single Judge dismissed the writ petition. Aggrieved, the petitioner filed this writ appeal.
2. On facts, we find that the appellant, a charitable trust, has established an Ayurveda Hospital and an Ayurveda Medical College. Initially, for the academic year 2007-08, the Department of AYUSH had permitted the appellant to conduct the undergraduate course with an intake of 50 students. This permission was being annually renewed. Following the W.A.2187/17 2 amendment to the Regulations in 2013, the intake of admission was fixed at 60 and later at 100. Subsequently, the appellant took steps to increase the intake of students to 100, and for that purpose, it obtained Ext.P2 NOC from the State Government on 7.6.2014 for the academic year 2014-15. Later, it had the NOC revalidated with an intake of 100 seats for the academic year 2014-15, copy of which is Ext.P3. Ext.P3 shows that while issuing the NOC, the Government considered the question as to how the increase in admission capacity would resolve the problem of shortage of qualified medical personnel in the State. The relevant portion of the order reads thus:
"Ayurveda is gaining popularity and acceptance all over the world. European countries and US are anxiously looking forward to India for the import of Ayurveda concepts and manpower. There is increasing demand for qualified Ayurveda practitioners in domestic sector also. But considering the present availability of qualified hands in Ayurveda in Kerala, these demands cannot be satisfied. This problem can be solved to some extent by increasing the seats of BAMS Course to 100 seats."
W.A.2187/17 3
3. Later, based on a policy decision, the Government cancelled Ext.P3 by Ext.P4 Government Order, dated 24.1.2016 (24.1.2017). Thereupon, the appellant filed W.P(C).7136/17. Through Ext.P5 order, dated 3.3.2017, this Court stayed the operation of Ext.P4. In this context, we may also mention that the policy, based on which Ext.P4 order was issued, was the subject matter of challenge in several cases before this Court. In fact, through the judgment in State of Kerala v. M.G.M. College of Arts & Science, Tvm [2017 (3) KLT 779], this Court declared the Government policy to be unconstitutional. Following that precedent, by judgment dated 17.11.2017, the Court allowed W.P(C).7136/17 and set aside Ext.P4 order.
4. In the meantime, the appellant had approached the respondent University and the University had issued consent of affiliation which reads thus:
"On the basis of the report of the Local Inquiry Committee, the Kerala University of Health Sciences, Thrissur has agreed in principle, to increase the seat for BAMS course conducted at PNNM Ayurveda Medical College, Cheruthuruthy P.O., Shoranur from 50 (fifty) to W.A.2187/17 4 100 (hundred), subject to grant of permission by the Government of India, Ministry of Health and Family Welfare, New Delhi under section 13A of the Indian Medicine Central Council Act, 1970 (48 of 1970)."
5. This document also shows that the consent for affiliation was to increase the intake of students from 50 to 100. Still later, the Central Council for Indian Medicines, constituted under the Indian Medicine Central Council Act, 1970, inspected the appellant's college and submitted its report. Based on their report and after a process of evaluation by it, the Department of AYUSH, by Ext.P6 order, dated 23.10.2017, permitted the appellant to increase the intake of students to 100. This permission was granted in exercise of the powers under the Indian Medicine Central Council (Requirements of Minimum Standard for under-graduate Ayurveda colleges and attached Hospitals) Regulations, 2016, ("the Regulations, 2016") framed by the Central Council in exercise of the power conferred under Section 36(j) of the Indian Medicine Central Council Act, 1970 ("Act, 1970").
W.A.2187/17 5
6. Accordingly, the appellant completed the procedural requirements for obtaining affiliation for the increase of intake of students to 100 seats. And Ext.P8 shows that necessary affiliation fee was also remitted. Thereafter, the University representatives inspected the college; the inspection resulted in the University issuing Ext.P9 dated 28.10.2017, whereby the intake of students was restricted to 60. This led to the writ petition.
7. In the statement filed by the University, it has justified its action thus:
"4. The petitioner submitted applications for the enhancement of seats in BAMS course and also for starting to new specialties at the postgraduate level. The college was inspected and the inspection report was scrutinized by the University. On scrutiny it was found that though the college had given a long list of teachers, on the date of inspection 11 teachers were absent. 3 teachers were shown as on duty in some other centres of the college, one was shown as on deputation and the 7 others were shown as on leave. The person who was shown as on deputation is presently working as a project officer in the University and he is not at all available in the college for taking classes. The comparatively higher rate of W.A.2187/17 6 absentees on the date of inspection casts doubt on the claims of the college regarding the availability of the staff. Thus only those persons were present at the time of inspection is taken into consideration. On a verification of the details of the persons present at the time of inspection it is also found that on department vice categorization there is a dearth of 9 senior faculty and one junior faculty in the college the deficiencies can be tabulated as follows:
Sl. Name of Department Deficiency of Faculty No. 1 Prasutitantra 1 Professor and 1 Lecturer 2 Basic Principles 1 Professor and 1 Reader 3 Kriyasareera 1 Reader 4 Rachana Sareera 1 Reader Rasasasthra and 1 Professor 5 Bhaishajya Kalpana 6 Agadatantra 1 Reader 7 Shalakyatantra 1 Reader 8 Shalyatantra 1 Professor/Reader At the same time the requirement for continuing the base unit of 60 seats is available in the college. The college has given declarations to the effect that a reader in the Department of Kriyasareera and a higher and lower faculty in the Department of Prasoothithanthra and Sthreeroga would be appointed before 31st December, 2017.
Thus there is an admission on the part of the college that they do not possess all the required staff strength on the date of inspection.
Regarding the part-time teachers in modern medicine and yoga no records and persons are available.
W.A.2187/17 7
5. It is submitted that one of the objects of the University is to see that there is an equitable distribution of learning facilities in medical sciences in the state. It is to be seen that there is no concentration of institutions in a particular area and that the backward areas are given preference while sanctioning additional courses. With this intention, section 51 of the Kerala University of Health Sciences Act provides for the framing of a prescriptive plan for sanctioning courses. The University has taken up the preparation of the plan and is about to be put the same in place within a short time. The area where the petitioner's college is situated has got 4 other ayurveda medical colleges within a radius of around 30 kms. The concentration of colleges in the particular area leads to an unhealthy competition between the institutions and also in the decline of the inpatient strengths of the institutions.
6. The University has received so many requests from various organizations working in the field of ayurveda medicine pointing out that at present around the 2000 graduates come out of the ayurveda medical colleges in Kerala and outside Kerala every year. But the employment opportunities available in the state is less than
100. There is a surplus of ayurveda doctors in the state and it is not possible to absorb them to any proper employment. The statistics maintained by the government regarding the job opportunities available is not correct. The situation available in W.A.2187/17 8 the state is that a graduate ayurveda doctor works even on a salary of Rs.6000/- per month. The request made before the University is that additional seats in BAMS course may not be permitted, at least till the prescriptive plan is put in place. It is submitted that in the branches of medical sciences where there is a surplus of trained personnel, it is decided that sanctioning of additional seats is to be deferred till the prescriptive pan is prepared and approved. The University has got every authority to deny affiliation of additional seats in any medical course. It is to be noted that even in the government Ayurveda Medical Colleges in the state, 100 seats are not permitted, though they are institutions having all the facilities."
8. These averments have been contradicted by the appellant in its reply affidavit, the relevant portion of which reads as follows:
"2. . . . . . . . . The inspectors appointed by the University had inspected the attendance register. They were furnished with copies of the attendance register and the total faculty members available in the college including higher and junior are 55 in number. Out of the 55 members in the teaching faculty of the college, two of them viz. Dr.Ragesh C., Asst. Professor in the Depart of Kriyarsareeram and Dr.Saranya P.R., Assistant Professor, Department of Roganithan were on ROTP Programme (Teachers Training Programme) at Government Ayurveda College, Kannur and W.A.2187/17 9 Thripunithura respectively. Dr.Sudhi Kumar K.B., Professor and HOD, Department of Salyathanthra is on research work as an expert in the research wing of KUHS. He is on leave for a period of six months and on expiration of the leave, he will re- join. Dr.Jayanthi P.V., Professor and HOD, Department of Salakyathanthra is on long leave from 15.08.2017 as a result of an accident. Her name though shown in the attendance register, the column is shown as 'leave' as can be seen from the attendance register. As stated earlier, Dr.Sudhi Kumar, who is also on long leave and undertaking research work in the University is also shown as 'on leave', since he is required to report back duty after the leave period from 10.08.2017. Dr.Deepak Pattil (Associate Professor), Dr.Chandrasekhar Nagannoor (Assistant Professor), Dr.Chakrahani Ananthavaradan Raju (Associate Professor) and Dr.Ranjith B.Raj (Assistant Professor) were on leave on the date of inspection. It is submitted further in this connection that there are no classes in the medical college since the students were on study leave for the last two months, except the final year BAMS students. Therefore, the presence of these teachers is not required on a daily basis when there are no regular classes. However, persons taking classes in the clinical subjects are attending the Vaidyasala also and it is the part of their assignment and that is how the teachers were present at the time of inspection. It is submitted further in this connection that the petitioner medical college is having Vaidyasala at various places in the State and outside. Teachers in the W.A.2187/17 10 clinical faculty are deputed in the hospital branches on rotation basis and such faculty members are deputed normally on Saturdays and Sundays, when there are regular classes in the college and on other days when there is no classes. Dr.K.P.Muraleedharan, Professor and HOD, Department of Basic Principles was at the Ernakulam Hospital Branch on 24th and 25th of October, 2017, Dr.Sasikumar N., Professor and HOD, Department of Rasasasthra and Bhaishyajyakalpana was at the Thiruvananthapuram Branch on 25th and 26th and Dr.Harikrishnan, Associate professor, Agathathanthra was at the Chennai Branch on 24th, 25th and 26th. They were on duty. It may incidentally be stated in this connection and as stated earlier, the physical presence of these faculty members is not required during the month of September and October when students are on study leave, but for attending the Vaidyasala which forms part of their duty. It is therefore submitted that the statement contained in paragraph 4 that, there was deficiency of 9 faculties as narrated in the chart is a conscious attempt to mislead the court even though those faculties were in the regular pay of the college and were on official duty including the assignment of attending the branches, interacting with the patients and gaining experience. The further statement to the effect that the Reader in the Department of Kriyasareera and a higher and lower faculty in Department of Prasoothithanthra would be appointed before 31st December 2017, is also a misleading statement. Undertaking in respect of Prasoothithanthra was given for the PG Course W.A.2187/17 11 when as a matter of fact there is another Professor in the same department, the second professor is required for the PG Course. The presence of the said Professor is required even by the norms of CCIM by the end of December. True copy of the declaration given is produced herewith and marked as Exhibit-P10. It is submitted in this connection that there are laid down norms as regards faculty in terms of the Regulations. As per the said Regulations, for an intake of 100 seats, the minimum required faculty is 40, out of which the minimum 19 Professors or Readers covering all the 14 departments are required."
9. The learned single Judge heard and dismissed the writ petition. According to him, there was no established circumstances to hold that the University acted illegally. The learned single Judge has also held that even the appellant has no case that it has minimum capacity of instructional facilities as required under the Regulations.
10.We have heard the counsel for the appellant, the standing counsel for the University, as well as the Government Pleader appearing for the second respondent.
W.A.2187/17 12
11.The main issue to be considered is whether the University could restrict the student intake to 60 when, by Ext.P6, the AYUSH had granted permission to increase the intake of students to 100.
12.While considering this issue, it is necessary to refer to some of the provisions in Act, 1970, and also in the Kerala University of Health Sciences Act, 2010 ("Act, 2010"). To begin with, Act 1970 provides for the constitution of a Central Council of Indian Medicine, the maintenance of a Central Register of Indian Medicine, and for matters connected therewith. Section 3 in Chapter II of the Act deals with the constitution of Central Council and its committees. Chapter IIA provides for permission for new Medical College, Course, etc. Section 13A provides for permission for establishment of new medical college, new course of study, etc. And sub-section (1) of Section 13A provides that notwithstanding anything contained in this Act or any other law for the time being in force, no person shall establish a medical college or no medical college shall open a new or higher course of study or training, including a post-graduate course of study or training, which W.A.2187/17 13 would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or increase its admission capacity in any course of study or training including a post-graduate course of study or training, except with the previous permission of the Central Government obtained under this section.
13.Explanation 2 provides that for the purposes of this section, "admission capacity" in relation to any course of study or training, including post-graduate course of study or training in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training. Sub-section (2) thereof requires that to obtain permission for opening a new course of study or training or to increase the admission capacity, a scheme under sub-section (3) shall be submitted to the Central Government and the Central Government shall refer the scheme to the Central Council for its recommendations. Sub-section (4) provides that on receipt of a scheme from the Central Government, the Central Council may obtain such other particulars as may be considered W.A.2187/17 14 necessary by it from the person or the medical college concerned, and thereafter, it may consider the scheme duly considering the factors indicated in sub-section (8) and submit it to the Central Government with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government.
14. Sub-section (5) of Section 13A provides that the Central Government may, after considering the scheme and recommendations of the Central Council under sub-section (4), and if necessary, after obtaining such other particulars as may be considered necessary by it from the applicant and having regard to the factors stated in sub-section (8), either approve the scheme with such conditions, if any, as it may consider necessary or disapprove the scheme and any such approval shall constitute as a permission under sub-section (1). Sub- section (8) referred to above provides that the Central Council while making its recommendations and the Central Government while passing an order under sub-section (5) shall have due regard to the factors mentioned therein. W.A.2187/17 15
15.These provisions of Act, 1970, being relevant for this case, section 13A is extracted below for reference:
"13A. Permission for establishment of new medical college, new course of study, etc. --(1) Notwithstanding anything contained in this Act or any other law for the time being in force,--
(a) no person shall establish a medical college; or
(b) no medical college shall--
(i) open a new or higher course of study or training, including a post-graduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training including a post-graduate course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1.--For the purposes of this section, "person" includes any University or a trust, but does not include the Central Government.
Explanation 2 .--For the purposes of this section, "admission capacity", in relation to any course of study or training, including post-graduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training.
(2) Every person or medical college shall, for the purpose of obtaining permission under sub-section W.A.2187/17 16 (1), submit to the Central Government a scheme in accordance with the provisions of sub-section (3) and the Central Government shall refer the scheme to the Central Council for its recommendations. (3) The scheme referred to in sub-section (2), shall be in such form and contain such particulars and be preferred in such manner and accompanied with such fee, as may be prescribed.
(4) On receipt of a scheme from the Central Government under sub-section (2), the Central Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may,--
(a) if the scheme is defective and does not contain necessary particulars, give a reasonable opportunity to the person or medical college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the Central Council;
(b) consider the scheme, having regard to the factors referred to in sub-section (8) and submit it to the Central Government together with its recommendations thereon within a period not exceeding six months from the date of receipt of the reference from the Central Government. (5) The Central Government may, after considering the scheme and recommendations of the Central Council under sub-section (4) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or medical college concerned and having regard to the factors referred to in sub-section (8), either approve the scheme with such conditions, if any, as W.A.2187/17 17 it may consider necessary or disapprove the scheme and any such approval shall constitute as a permission under sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the person or medical college concerned a reasonable opportunity of being heard:
Provided further that nothing in this sub- section shall prevent any person or medical college whose scheme has not been approved by the Central Government to submit a fresh scheme and the provisions of this section shall apply to such scheme as if such scheme had been submitted for the first time under sub-section (2).
(6) Where, within a period of one year from the date of submission of the scheme to the Central Government under sub-section (2), no order is communicated by the Central Government to the person or medical college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted, and, accordingly, the permission of the Central Government required under sub-section (1) shall also be deemed to have been granted.
(7) In computing the time-limit specified in sub-
section (6), the time taken by the person or medical college concerned submitting the scheme, in furnishing any particulars called for by the Central Council, or by the Central Government, shall be excluded.
W.A.2187/17 18 (8) The Central Council while making its recommendations under clause (b) of sub-section (4) and the Central Government while passing an order, either approving or disapproving the scheme under sub-section (5), shall have due regard to the following factors, namely:--
(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of medical education as prescribed by the Central Council under section 22;
(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation, training, hospital or other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to W.A.2187/17 19 students likely to attend such medical college or the course of study or training by persons having recognised medical qualifications;
(f) the requirement of manpower in the field of practice of Indian medicine in the medical college;
(g) any other factors as may be prescribed.
(9) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or medical college concerned".
16. Section 14 in Chapter III of Act, 1970, provides for recognition of medical qualifications granted by certain medical institutions in India. In terms of its provisions, the medical qualifications granted by any University, Board, or other medical institution in India which are included in the Second Schedule to the Act shall be the recognised medical qualifications for the purposes of this Act. Section 21 of Act, 1970, provides for withdrawal of the recognition. In terms of this provision, when, upon a report of an inspector at examinations appointed under section 19 or the visitor at examinations appointed under Section 20, it appears to the Central Council that the courses of study and examinations to W.A.2187/17 20 be undergone in or the proficiency required from candidates at any examination held by any University, Board, or medical institution, or that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board, or medical institution or in any college or other institution affiliated to the University do not conform to the standard prescribed by it. Then, the Central Council shall represent to that effect to the Central Government.
17.Thereupon, under sub-section (2), after receipt of such a representation, the Central Government may send the representation to the Government of the State where the institution is situated, and the State Government shall forward it with such remarks, as it may choose, to the institution with an intimation to submit its explanation to the State Government. Sub-section (3) provides that on receipt of the explanation or where no explanation is submitted within the period fixed, the State Government shall make its recommendations to the Central Government and under sub- section (4), after inquiring that it may think fit, the Central W.A.2187/17 21 Government may, by notification in the official gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date or that the said medical qualification shall be recognised medical qualification only when granted after a specified date. This section also is extracted below for reference.
"21. Withdrawal of recognition.-- (1) When upon report by the inspector or the visitor, it appears to the Central Council--
(a) that the courses of study and examination to be undergone in, or the proficiency required from candidates at any examination held by, any University, Board or medical institution, or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board or medical institution or in any college or other institution affiliated to the University, do not conform to the standard prescribed by the Central Council, the Central Council shall make a representation to that effect to the Central Government.
(2) After considering such representation, the Central Government may send it to the Government of the State in which the University, Board or W.A.2187/17 22 medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University, Board or medical institution, with an intimation of the period within which the University, Board or medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or, where no explanation is submitted within the period fixed, then, on the expiry of that period, the State Government shall make its recommendations to the Central Government.
(4) The Central Government, after making such further inquiry, if any, as it may think fit, may, by notification in the Official Gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognized medical qualification only when granted before a specified date, or that the said medical qualification if granted to students of a specified college or institution affiliated to any University shall be recognized medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be recognized medical qualification in relation to a specified college or institution affiliated to any University only when granted after a specified date
18. Section 22 empowers the Central Council to prescribe minimum standards of education in Indian Medicine, required for granting recognised medical qualifications by Universities, W.A.2187/17 23 Boards, or medical institutions in India. This section, being relevant, is extracted below:
"22. Minimum standards of education in Indian medicine.--(1) The Central Council may prescribe the minimum standards of education in Indian medicine, required for granting recognised medical qualifications by Universities, Boards or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments and the Central Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(3) Each of the Committees referred to in clauses (a), (b) and (c) of sub-section (1) of section 9 shall, from time to time, report to the Central Council on the efficacy of the regulations and may recommend to the Central Council such amendments thereof as it may think fit."
19. Section 36 of Act, 1970, provides that with the previous sanction of the Central Government, the Central Council may, by notification in the official gazette, make regulations generally to carry out the purposes of the Act and clause (j) W.A.2187/17 24 provides that such regulations may provide for the standards of staff, equipment, accommodation, training, and other facilities for education in Indian medicine. In exercise of its power under clause (j) of section 36 of Act, 1970, the Central Council of Indian Medicine, with the previous sanction of the Central Government, to regulate the requirement of colleges for education in Ayurveda system of medicine, made the Indian Medicine Central Council (Minimum Standard Requirements of Ayurveda Colleges and attached Hospitals) Regulations, 2016, which was notified on the 7th of November, 2016. Clause 3 of Regulations, 2016, which prescribes the requirements of Minimum Standards to grant permission, is extracted below:
"3. Requirements of Minimum Standard to grant of permission-
(1) (a) The Ayurveda colleges established under section 13A and existing under section 13C of the Act and their attached hospitals shall fulfill the requirements of minimum standard for infrastructure and teaching and training facilities referred to in the regulations 4 to 11 upto the 31st December of every year for consideration of grant of permissions for undertaking admissions in the coming academic session;W.A.2187/17 25
(b) the Central Council shall visit the college suo moto three months before the expiry of permission;
(c) the proforma of visit as prescribed by the Central Council on its website shall be filled online by the colleges and visitors respectively followed by submission of a hard copy of the same as per visitors guidelines issued by Central Council from time to time;
(d) the videography and photography of staff and infrastructure during the visit shall be made by the visitors and submitted along with detailed report and observations to the Central Council;
(e) after submission of online detailed report and observations by the visitors to the Central Council, the Central Council shall submit its recommendation along with detailed report to the Central Government within a period of one month from the submission of report by the visitors;
(f) the Central Council shall certify that teaching faculty present in the college is not working at any other place;
(g) the position prevailed on the date of visit to assess the fulfilment of requirements as specified in these regulations except sub-
regulation (2) of regulation 7 shall be taken into consideration for grant of conditional permission or permission for a period of five years to the colleges.
(2) Requirements of Minimum Standard to grant of permission for a period of five years-
W.A.2187/17 26
(a) After fulfilment of the requirement as per these regulations by the college, the permission shall be granted to undertake admissions for a period of five years. The college shall be randomly inspected within the said period on receipt of any complaint; or if from online Bio-metric attendance it is found that teaching, non- teaching staff, hospital staff not present regularly, or hospital is not properly functional, or otherwise as required by the Central Government or by the Central Council;
(b) any deficiencies arising within the said period shall be fulfilled by the college within hundred- fifty days under intimation to the Central Council otherwise the permission for a period of five years deemed to be withdrawn;
(c) colleges which were permitted for a period not exceeding five years from the academic session 2014-15 to 2018-19 and 2015-16 to 2019-20 shall be maintain the requirements as specified under the regulations 4 to 11 otherwise the permission for a period of five years deemed to be withdrawn.
(3) Requirements of Minimum Standard to grant of conditional permission of one year-
(a) The conditional permission of one year for particular academic session shall be granted only to those colleges which are fulfilling following requirements on the basis of the inspection by the Central Council between the 31st December to the 31st March for the succeeding academic session: W.A.2187/17 27
(i) the requirement of teachers as specified in the Schedule-V;
(ii) the requirement of teaching hospital as specified under sub-regulation (2) of regulation 7;
(iii) availability of minimum seventy-five percent. of required equipment as specified in the Schedule- VII;
(iv) availability of herbal garden as specified in the Schedule-III;
(v) availability of hospital staff as specified in the Schedule-IV, (vi) availability of technical and other staff as specified in the Schedule-VI;
(vii) availability of college council as specified in sub- regulation (1) of regulation 9;
(viii) availability of college website as specified in sub-regulation (2) of regulation 9;
(ix) availability of biometric attendance as specified in sub-regulation (3) of regulation 9; and
(x) availability of minimum constructed area of college and hospital as specified in regulation 5.
(b) the colleges, which have been granted conditional permission or which have been denied permission for the academic session 2015-16 shall be required to fulfill the requirements as specified above in clause (a) to obtain the conditional permission of one year for particular academic session or for a period of five years as specified in the regulations 4 to 11."
20. Clause 4 of Regulations, 2016 deals with the requirement of land; clause 5 with the requirement of minimum constructed area, clause 6 deals with admission capacity; clause 7 with W.A.2187/17 28 requirements of teaching hospital; clause 8 with requirements of college; and clause 9 with miscellaneous requirements. In the context of this case, clause 6 dealing with admission capacity and clause 8 dealing with the requirements of college, being relevant, are extracted below for reference:
"6. Admission Capacity- The annual intake capacity of the colleges shall be in the slabs of sixty and hundred. The colleges having intake capacity of less than sixty or sixty-one to hundred seats, shall comply the requirements for sixty or hundred seats respectively, as specified in the Schedules-I to VII. "
"8. Requirements of College-
(1) (a) Teaching staff: There shall be minimum thirty full time teachers and fort- five full time teachers appointed on regular basis for admissions of up to sixty students and sixty-one to hundred students respectively with the addition of ten part time teachers (eight teachers of Modern Medicine, one Yoga teacher and one Biostatistician) for each slab as specified in the Schedule-V, the teacher fulfilling the eligibility norms of the related teaching post or subject teacher shall be appointed on deputation or contractual basis.
(b) Age of superannuation of teachers: The age of superannuation of teachers shall be as per the order of the Central Government or State Government or University Grant Commission. The W.A.2187/17 29 retired teachers, fulfilling the eligibility norms of teachers may be re-employed up to the age of sixty-five years as full time teacher.
(c) The detail of every teacher such as academic qualification, total teaching experience along with name of previous institutions, date of joining shall be on the website of college.
(d) The list of all the teachers with complete detail such as Code allotted by the Central Council, academic qualification, total teaching experience along with name of previous institutions and present institute, shall be displayed at the website of the Central Council.
(2) Requirement of technical and other staff:
Technical and other staff in various units and departments of the college shall be as per the details given in the Schedule-VI."
21. Let us now have a look at the Kerala University of Health Sciences Act, 2010, which was enacted to establish and incorporate a University of Health Sciences in the State of Kerala and to provide for matters connected therewith or incidental thereto. In terms of section 2(b), "Affiliated College" means a college imparting education in health and allied sciences affiliated to the University under the Act and the Statutes. Chapter VII of Act, 2010, deals with permission, affiliation, and recognition of colleges. Section 50 provides for W.A.2187/17 30 affiliation and recognition and section 51 deals with procedure for permission. Section 53 provides for continuation of affiliation and section 56 empowers the University to withdraw the affiliation.
22.We have referred to these provisions of the University Act only to answer the appellants' contention that once, by Ext.P6, AYUSH has granted permission to increase the intake of students to 100, the University could have imposed no restriction on the intake in any manner. As we have seen, section 13A of Act, 1970, provides for permission for establishment of new medical colleges, including the increase of its admission capacity in any course of study. Act 1970 falls under Entry 66 of List I and Entry 25 of List III of the 7th Schedule to the Constitution of India. Similar enactments have been made by the Central Legislature in the field of technical education as also medical education and these legislations contain provisions similar to those in Act, 1970. In so far as the technical education is concerned, the relevant enactment is the All India Council for Technical Education Act, 1987. In the context of the said enactment also, similar controversies have W.A.2187/17 31 arisen and the Apex Court had the occasion to reconcile the conflicting claims arising out of the provisions of the Central and State enactments. In one such case, the State enactments considered were the Tamil Nadu Private Colleges Regulation Act and Madras University Act. And it was held that to the extent of inconsistency, the provisions of the State enactment would be void.
23.Once the Central Act came into force, has the State Government Power to grant or withdraw permission to a person to start a technical institution? This question was considered in State of Tamil Nadu v. Adhiyaman Educational & Research Institute [(1995) 4 SCC 104]. The Apex Court has held that in case any institution is imparting technical education in terms of Section 10 of Central Act, it is the Central Act and Council created under it that could have jurisdiction and not University. So, institutions could not be derecognised or disaffiliated because they did not fulfill higher requirements under State Act, although they fulfilled requirements under Central Act. In other words, it is not open for the body created under State Act to exercise such power as W.A.2187/17 32 are inconsistent or repugnant to those laid down under Central Act.
24.In Jaya Gokul Educational Trust v. Commissioner & Secretary to Government Higher Education Department [(2000) 5 SCC 231] also, the very same question arose. And the Apex Court has laid down how the situation will have to be resolved by the State Government or the University in the event any fresh facts come to its knowledge. This can be seen from paragraph 27 of the judgment, extracted below for reference:
"27. The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirumuruga Kirupan & Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu and Others (JT 1996 (2) 692), which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry.25 List III, it was held (see p. 35 para 34) that the "essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone". (emphasis supplied) W.A.2187/17 33 Therefore, the State could not have any "policy"
outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation.8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission are required by the AICTE to be complied with, were not complied with, then the State Government could always write to the AICTE, to enable the latter to take appropriate action."
25.A similar issue came up for consideration before the Apex Court in Mata Gujri Memorial Medical College v. State of Bihar [(2009) 16 SCC 309]. Under Bihar State Universities Act, 1976, the State Government refused to grant affiliation to a medical college. High Court affirmed the refusal. On appeal, the Supreme Court found from materials on record that both Medical Council and Central Government had held due inspection of the Appellant institution and were fully satisfied about capability of institution to impart MBBS course for 60 W.A.2187/17 34 students annually. In that context, the Apex Court has held that when both Medical Council and Central Government are fully satisfied about capability of institution to impart MBBS course, State Government shall grant affiliation to institution.
26.These judgments were followed in Rungta Engineering College, Bhilai v. Chattisgarh Swami Vivekanand Technical University [(2015) 11 SCC 291]. AICTE, on inspection, reported that petitioner college fulfilled all conditions prescribed by norms and standards laid down by it. The respondent University too did not assert that the AICTE report was factually incorrect. Here also the Apex Court reiterated that even if the college failed to fulfill any condition required to be fulfilled under the norms specified by AICTE, the only course open for the University is to bring the deficiency to the notice of AICTE and seek appropriate action against petitioner college.
27.From the provisions of the enactments that we have surveyed, and the legal principles laid down by the Apex Court, it is evident that field of education in Ayurveda is fully regulated W.A.2187/17 35 by the provisions in Act 1970, and if provisions of Act 2010 is in conflict with Act 1970, the State enactment, for its inconsistency, must yield to the Central enactment. If that be so, when the Central Council, on inspection and satisfaction that the infrastructural and instructional facilities provided by the college has satisfied the standards laid down in Act, 1970 and Regulation 2016, granted permission to increase the intake of students to 100 seats, such increase of intake could not have been restricted by the University in exercise of its powers under Act 2010. Therefore, the contention of the University that it was in exercise of its powers under Act, 2010 that it has restricted the intake to 60 students cannot be accepted. However, if, as contended by the University, infrastructural and instructional facilities were inadequate or the permission should not have been granted for any other valid reason, the course open to the University is to adopt the procedure indicated by the Apex Court in the judgment in Jaya Gokul. (supra).
28. Now the further question that survives is whether the increase of intake as per Ext.P6 dated 23.10.2017 would enure W.A.2187/17 36 to the benefit of the college in the current academic year (2017-18) itself. As we have already stated, the increase of intake was allowed by the AYUSH in exercise of its power under Regulation, 2016. Clause 3 of the Regulations 2016, as we have held, deals with the requirements of minimum standard to grant permission. At the risk of repetition, sub- clause 1(a) of clause 3 of the Regulation is extracted for reference:
"(1) (a) The Ayurveda colleges established under section 13A and existing under section 13C of the Act and their attached hospitals shall fulfill the requirements of minimum standard for infrastructure and teaching and training facilities referred to in the regulations 4 to 11 upto the 31st December of every year for consideration of grant of permissions for undertaking admissions in the coming academic session;"
29. A reading of these provisions shows that Ayurveda colleges established under Section 13A, as the appellant herein, and their attached hospital, shall fulfill the requirement of minimum standard for infrastructure and teaching and training facilities referred to in Regulations 4 to 11 up to the 31st December of every year for consideration of grant of W.A.2187/17 37 permission for undertaking admissions in the coming academic session.
30.In so far as this case is concerned, the inspection by the Central Council, evaluation by AYUSH and Ext.P6 issued by AYUSH was during 2017. Therefore, all these exercises were for consideration of grant of permission for undertaking admissions for the coming academic session, viz., the academic session 2018-19. Therefore, Ext.P6 cannot enure to the benefit of the appellant for increasing the intake of students for the current academic year, but only to the academic year 2018-19. In the above view, we cannot uphold the judgment of the learned single Judge. Accordingly, it will stand set aside. We allow the appeal, clarifying that the appellant will be entitled to the benefit of Ext.P6 only from the academic year 2018-19.
Sd/-
ANTONY DOMINIC ACTING CHIEF JUSTICE Sd/-
DAMA SESHADRI NAIDU JUDGE kkb.
/True copy/